Mises Wire

Federal Prosecutors Are Running Amok

It is hard to know where to begin regarding the charges against Paul Manafort, the former campaign director for Donald Trump’s successful presidential bid, but having read the indictments and knowing some background about both the case and the investigation, I cannot say it is exactly a high point of American justice. In fact, when former FBI chief Robert Mueller first was appointed as a special prosecutor to look into the allegations that the Trump campaign conspired with Russia the tilt the election to Trump’s favor, I feared his investigation would turn out to be an assault on the Constitution – and Mueller has done nothing to dispel those fears.

I have included a link to the actual indictment, and while federal indictments can be a bit mind-numbing to read, nonetheless I have found nothing in it that relates to the original reason the Mueller probe was created: alleged Russian collusion with the Trump campaign. Instead, it is clear that Mueller engaged in a legal “fishing expedition” against Manafort and found evidence of tax evasion involving income that Manafort made while serving as a lobbyist for the government of Ukraine.

The criminal charges themselves clearly don’t match up to the original purpose of the investigation. Writes Judge Andrew Napolitano:

Both were accused of working as foreign agents and failing to report that status to the federal government, using shell corporations to launder income and obstruction of justice by lying to the federal government.

He adds:

The alleged crimes of Manafort and Gates appear to have nothing to do with Trump, nor have they any facial relationship to the Russians. So why were these two indicted by a grand jury hearing evidence about alleged American assistance to Russian interference with the 2016 presidential campaign?

One of the worrisome aspects of the indictments, however, has been Mueller’s use of the Foreign Agents Registration Act, as filing criminal charges using that law has been done only six times before, according to George Washington University and legal blogger, Jonathan Turley. Manafort’s violation, notes Turley, was retroactively registering as a foreign agent, something that in almost all cases is treated as a regulatory violation and punished with fines (if it even comes to that). For that matter, prominent Democrat lobbying Tony Podesta, brother of Hillary Clinton’s campaign manager John Podesta, did the same thing and no federal prosecutor cared to make a federal crime out of it.

If anything, I believe that in his quest to rid Washington of Donald Trump, Mueller seems to be taking a page from Rudy Giuliani’s infamous Wall Street prosecutions in which he and his staff found ways to criminalize what at most were regulatory violations (which almost are impossible not to violate, given the voluminous numbers of them promulgated by the Securities and Exchange Commission). Yes, there are issues of tax evasion, allegedly hiding income, and depositing money in offshore banks, but none of those relates to anything remotely involving alleged Russian involvement in the U.S. presidential election of 2016.

While I have no doubt Manafort will go to federal prison, given the near-unchecked powers of U.S. attorneys, whether or not Mueller and his highly-partisan staff are going to be able to use their probe to remove Trump from office – which clearly is Mueller’s goal – is another matter altogether. What is clear is that Mueller has openly declared war on legal ethics, from his hiring of a prosecutor who has been cited before for skirting the law, to his basing much of the justification for his investigation upon a document secretly funded by the Democratic National Committee and the Hillary Clinton campaign which has seriously been questioned for its truthfulness.

Mueller raised some eyebrows early in his tenure as special counsel by hiring prosecutors with controversial reputations for stretching the criminal conduct to the breaking point. His chief aide, Andrew Weissmann, has been widely criticized for a pattern of “prosecutorial overreach” in cases like Enron. Weissmann’s work against the accounting firm of Arthur Andersen is one such example. The convictions that he secured at any cost in that case were unanimously reversed by the Supreme Court. Likewise, Weissmann secured convictions against four executives with Merrill Lynch by stretching the criminal code beyond recognition The Fifth Circuit reversed them. He also resigned from the Enron task force in the midst of complaints over his tactics.

One should recall that the Enron prosecution was characterized by prosecutorial misconduct throughout the case, including subornation of perjury, lying to the judge and jurors (not to mention the public), and withholding exculpatory evidence. That Mueller would reach into that prosecutorial cesspool and pull out the one prosecutor who was deemed even too dishonest for that probe says clearly that Mueller is not going to allow truth to seep into his prosecution.

Indeed, Weissman’s dishonesty and Cheka-like tactics could be the entire subject of this article (which would make it a very long piece of writing, indeed) and I am not surprised that the New York Times and the rest of the political establishment is solidly behind him. The newspaper that covered up the horrendous Ukraine famine of the early 1930s – and still proudly displays the Pulitzer Prize it won for its false reporting – long ago abandoned journalistic integrity to use its pages to chase after progressive causes. Those of us that wrote extensively about the infamous Duke Lacrosse Case also remember how the NYT cheered on one of the most corrupt prosecutors in U.S. history. That Mueller would use a known liar like Weissman as his lead prosecutor is deemed acceptable by the NYT because the ultimate goal in the Mueller campaign is to remove Trump from the White House. While the NYT will not use the term “by any means necessary,” it is clear that the newspaper and the ruling class it represents are willing to accept lawbreaking on behalf of the federal government to accomplish Trump’s outster.

In his well-referenced book Three Felonies a Day, Silverglate documents how federal prosecutors manage to find crimes where there is no criminal behavior, and certainly no intent even to break the law. He also points out that a favorite tactic of federal prosecutors is to charge a lower-level employee or associate of the person actually being targeted, and then offer that person a deal – provided the accused says what prosecutors want to hear. As Silverglate has said, the idea is to get the accused person to “sing,” but all-too-often, what prosecutors actually do is to get the person to “compose” something that is not true. Judge Napolitano concurs:

The ultimate target of Mueller’s investigation is President Trump. It is standard operating procedure when prosecutors have a high-level target to charge those below the target with something just to get them to cooperate. Though the charges against Manafort and Gates need not be related to the Russians or to Trump, they must be real. It’s clear they are, as each is facing more than 20 years in prison. Mueller believes that that prospect is enough to dispatch their lawyers to make deals with him.

The danger of such a deal is that Manafort and Gates may offer to tell Mueller what they think he wants to hear — even if it is not truthful — so that they can have their prison exposure lessened. (Emphasis mine)

Indeed, given that neither Weissman nor Mueller ever have been bound by ethical constraints, I would not be surprised to see prosecutors and the FBI simply create false testimony out of whole cloth. Ordinarily, using such a tactic against a sitting president would be beyond the pale and not even federal prosecutors in ordinary circumstances would consider doing it. However, these hardly are ordinary times, and the American political establishment is united against Trump and the media and the courts are less likely than usual to apply safeguards to accepting the truth of accusations against him. Just as Rudy Giuliani was able to run roughshod over law in order to indict and ultimately force Wall Street investment banker Michael Milken to plead guilty to what essentially were non-crimes, Mueller and Weissman are looking to do to President Donald Trump.

Not long ago, I would not even have thought of saying things I have written in this article, but that was before I began several years of research of federal criminal law and how prosecutors apply it. I still believe what I wrote seven years ago:

The great English jurist William Blackstone declared that law was to be “a shield for the innocent” and a mechanism to protect people from the predations of others, as well as the predations of the government itself — the very meaning of limited government. This is no longer the case. Ironically, as laws proliferate in Congress, the rule of law is disappearing. The law has become the plaything of federal prosecutors who advance their careers by convicting others.

Bill Anderson is a professor of economics at Frostburg State University in Frostburg, Maryland.